Uttarakhand High Court
Gurbachan Singh vs Power Grid Corporation Of India Ltd And ... on 14 February, 2018
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 109 of 2013
Gurbachan Singh ................ Appellant
[
Versus
Power Grid Corporation & others ................ Respondents
Mr. Gurbachan Singh, appellant, present in person.
Mr. A.S. Rawat, Senior Advocate assisted by Mr. Kartikey Hari Gupta,
Advocate present for respondent no. 1.
WITH
First Appeal No. 113 of 2013
Power Grid Corporation of India
[
................ Appellant
Versus
Gurbachan Singh & others ................ Respondents
Mr. A.S. Rawat, Senior Advocate assisted by Mr. Kartikey Hari Gupta,
Advocate, present for the appellant.
Mr. Gurbachan Singh, respondent no. 1, present in person.
Hon'ble Lok Pal Singh, J.
First Appeal no. 109 of 2013, filed by the appellant Gurbachan Singh, is directed against the judgment and decree dated 16.07.2013, passed in Reference Case no. 11 of 2011, by II Addl. District Judge, Rudrapur, Udham Singh Nagar, whereby the reference has been partially allowed by the said Court by awarding compensation as under:
1(a) Interest at the rate of 15% per annum on the amount of Rs. 2,50,88,418 from the date of possession of acquired land, i.e. 11.01.2005, 2 situated at Village Chikaghat, Pargana Kilpuri, Tehsil Sitarganj, admeasuring 0.244 Hectare (2440.00 sq. mt.) till the date of issuance of Notification under Section 4-A i.e. 05.09.2008. 1(b) 7% interest per annum on the entire amount of said interest under 1(a) above, from 05.09.2008 till the date of final payment.
2(a) 15% interest per annum on the total amount of Award of Rs. 2,50,88,418/- from 06.09.2008 to 24.10.2008.
2(b) 15% interest per annum on Rs. 2,20,88,418/- from 25.10.2008 to 10.06.2010.
2(c) 15% interest on balance amount of Rs. 41,06,378/-
from 11.06.2010 to 30.12.2010.
2(d) 7% interest per annum on the total amount of entire interest under 2(a), 2(b) and 2(c) above, from 30.12.2010 till the date of payment to the claimant.
In other words, by way of filing present first appeal, enhancement of interest on amount of compensation is being claimed by the appellant (landowner). In addition, reasonable / justified costs of litigation are also being claimed in this appeal.
First Appeal no. 113 of 2013, has been filed by the appellant Power Grid Corporation of India, for setting aside the judgment and decree dated 16.07.2013, passed in Reference Case no. 11 of 2011, by II Addl. District Judge, Rudrapur, Udham Singh Nagar.
2) Since aforementioned first appeals have arisen out of the same judgment and decree, therefore, they are 3 being decided together by this common judgment for the sake of brevity and convenience.
3) Heard Mr. Gurbachan Singh, appellant, in person and Mr. A.S. Rawat, Sr. Advocate assisted by Mr. K.H. Gupta, Advocate for respondent no. 1 carefully, perused the impugned judgment & decree and other documents brought on record.
4) Briefly put, appellant (Gurbachan Singh) was owner of land measuring 0.307 hectare, with transferable right bearing khasra no. 210/3, situated at village Chikaghat, Khatima Road, Sitarganj, Udham Singh Nagar. A part of the said land measuring 0.063 hectare was acquired by the State of Uttarakhand for the respondent Power Grid Corporation of India (hereinafter referred to as 'respondent Corporation') for installing a 220/132 K.V. Sub Station.
5) Dispute between the parties arose only when the respondent Corporation without any authority of law started encroaching upon the remaining land measuring 0.224 hectare (2440 sq. mt.) under the said khasra no. 210/3 of the petitioner, without paying any compensation or rent thereon. Since illegal possession was taken by the respondent Corporation over the appellant's land, the appellant preferred civil suit no. 39 of 2007, before the Civil Judge (Jr. Div.) Khatima. Said court passed an interim order dated 30.10.2007, restraining the respondent Corporation from carrying on construction activities over the land in question until compensation based on circle rates is paid to the appellant. Against said order, 4 respondent Corporation preferred a civil appeal no. 92 of 2007, before the District Judge, Rudrapur. Said appeal was dismissed vide order dated 15.02.2008.
6) Feeling aggrieved, respondent Corporation filed WPMS no. 371 of 2008, before this Court, challenging the order dated 15.02.2008.
7) High Court vide order dated 21.04.2008, passed the following order, while deciding MCC application no. 365 of 2008 in aforesaid writ petition. The same is being excerpted here-in-below:
"Reply has been filed in the Court today by respondent no. 1, which is taken on record.
The applicant may file rejoinder thereto in one week from today.
List on 6th May, 2008.
In the meanwhile, subject to the applicant depositing either in this Court or with the Collector, Udham Singh Nagar within two weeks from today an amount of Rs. 30,00,000/- (Rupees thirty lacs only), the applicant is permitted to remain in occupation of land belonging to respondent no. 1 and also go ahead with the installation activity.
As far as carrying out of any installation activity is concerned, this is purely at the risk and responsibility of the applicant because if ultimately this application is dismissed, the applicant shall have to remove the installations erected or carried out and shall not claim any compensation from anyone. For this purpose, therefore, the applicant shall file a written undertaking to this effect in this Court within two weeks from today.5
The acquisition proceedings, if already initiated shall also go on in the meanwhile."
8) Thereafter, considering the fact that the respondent Corporation cannot be permitted to occupy the land or any part of it, which has not been duly acquired in accordance with law and to resolve the controversy, the Court thinks fit that the best course of action would be to direct the Collector, Udham Singh Nagar to ensure the demarcation of the land and if it is found that the Power Grid Corporation has encroached over the land which has not been acquired, it shall be at liberty to approach the Collector or the State Government for the acquisition of such land under the provisions of Land Acquisition Act, 1894. The writ petition was finally disposed of vide judgment and order dated 28.02.2008.
9) Thereafter, demarcation was done and it was found that respondent Corporation has illegally occupied the land in question without any acquisition of the property and on the request of respondent Corporation the State of Uttarakhand issued a Notification under Section 4 of the Land Acquisition Act, 1894, on 05.09.2008.
10) The Special Land Acquisition Officer (for short SLAO) has assessed the market value of the land at the rate of Rs. 7000/- per sq. mt. and vide its order dated 30.12.2010, calculated the market value of the land at Rs. 1,70,80,000/- and awarded 30% solatium amounting to Rs. 51,24,000/-. In total, an amount of Rs. 2,50,88,418/- has been awarded to the appellant.
611) However, the appellant / landowner was not satisfied with the same and filed objections against the award of compensation, on which a reference was made to the District Judge, Udham Singh Nagar under Section 18 of the aforesaid Act. The learned Reference Court framed following issues on the basis of pleading of the parties in the reference case:
i) Whether the claimant is entitled to get the market value of acquired land at the rate of Rs. 8,000/- per sq. mt.? If so, its effect?
ii) Whether the claimant is entitled for the interest or rental compensation from the date of possession till the date of Notification under Section 4? If so, its effect?
iii) Whether the claimant is entitled for statutory interest from the date of possession till the date of final award?
iv) Whether the claimant is entitled for additional compensation under Section 23(A) and solatium under Section 23(2) from the date of possession till the date of final award?
v) Whether the claimant is entitled to benefits under the re-settlement and rehabilitation policy? If so, its effect?
vi) Whether the claimant is entitled to receive the amount of compensation of alleged damages?
vii) Whether the claimant has been paid proper compensation?
viii) Whether the claimant has received the amount of compensation without any protest? If so, its effect?7
12) As many as eight issues were framed by the reference court, but as far as findings recorded by the reference court on issue nos. (i), (iv), (v), (vi), (vii) and
(viii) are concerned, the same have not been assailed by any of the parties. The appellant / awardee / decree holder has challenged the finding on issues nos. (ii) and (iii). The respondent Corporation has also assailed the finding on issue no. (iii). Since the parties have challenged the findings on issue nos. (ii) and (iii), therefore, both the appeals are being heard only in regard to the issue nos. (ii) and (iii) and on further relief sought by the decree holder / appellant with regard to the special damages and costs of litigation. Thus, to decide the controversy, following points of determination were framed in both the appeals:
1. Whether the appellant is legally entitled for rent or damages in the form of interest for use and occupation of his land for the period prior to issuance of Notification issued under Section 4 of the Land Acquisition Act. Is so, then on what rate?
2. Whether the appellant is entitled for statutory interest on compensation awarded to the landowner due to delay in payment of compensation?
3. Whether the appellant is entitled to special costs for the litigation pursued by the respondent Corporation under Section 35A of the Code of Civil Procedure?8
13) Both the appeals are being heard only on the limited points of determination raised by decree holder / landowner as well as Power Grid Corporation of India Ltd.
Answer to points of determination no. 1 (findings on issue no. ii) :
14) As already mentioned in foregoing paragraphs of this judgment, admittedly, the land in question was not acquired by the respondent Corporation and without acquisition of the land of the awardee / decree holder, illegal possession was taken by the respondent Corporation.
Since illegal possession was taken, the appellant / awardee / decree holder was constrained to file a civil suit before the Civil Judge (Jr. Div.), Khatima. Said court passed an interim order dated 30.10.2007, restraining the respondent Corporation from carrying on construction activities over the land in question until compensation based on circle rate is paid to the appellant. Feeling aggrieved against said interim order, respondent Corporation preferred an appeal before the District Judge, Rudrapur. The order passed by the trial court was affirmed and said appeal was dismissed vide order dated 15.02.2008 passed by District Judge, Rudrapur. Feeling further aggrieved, respondent Corporation filed WPMS no. 371 of 2008 before this Court. The co-ordinate Bench of this Court, vide order dated 21.04.2008 permitted the respondent Corporation to carry out installation / erection activity on the land in question on its own risk subject to deposition of security of rupees thirty lacs. Respondent Corporation gave an undertaking to the effect that whatever amount of compensation will be 9 determined by the Collector or the Reference Court, the same shall be paid immediately by it to the appellant.
15) Hon'ble Apex Court way back in 1961 in the case of Satinder Singh and others vs Umrao Singh and others, A.I.R. 1961 Supreme Court 908, in paras 16, 17, 18 and 19 of said judgment, has held as follows:
"16. That takes us to the question of interest which has been urged before us by all the three claimants alike. The argument is that the amount of compensation awarded should carry a reasonable rate of interest from the date of acquisition when the claimants lost possession of their properties. This argument has been rejected by the High Court principally on the ground that the relevant Act of 1948 makes no provision for payment of interest and omission to make such a provision amounts in law to an intention not to award interest in regard to compensation amount determined under it. In support of this conclusion the High Court has referred to the fact that S. 5(e) of the Act specifically makes applicable the provisions of S. 23(1) of the Land Acquisition Act of 1894, and that, it is said, inevitably leads to the inference that Ss. 28 and 34 of the Act which deal with the payment of interest are not intended to apply to the proceedings under it. In our opinion, this conclusion is not well-founded. It would be legitimate to hold that by the application of S. 23(1) in terms the provisions of S. 23(2) are by necessary implication excluded. If the Legislature has provided that only one part of S. 23 should be applied it would be reasonable to hold that the other part of S. 23 was not intended to be applied; but we do not see how it would be reasonable to hold that by the 10 application of S. 23(1) the principles underlying the provisions of Ss. 28 and 34 are also excluded. Therefore, it is necessary to examine this question on general grounds and principles without assuming that the application of these general considerations is excluded by any of the provisions of the Act.
17. What then is the contention raised by the claimants? They contend that their immovable property has been acquired by the State and the State has taken possession of it. Thus they have been deprived of the right to receive the income from the property and there is a time lag between the taking of the possession by the State and the payment of compensation by it to the claimants. During this period they have been deprived of the income of the property and they have not been able to receive interest from the amount of compensation. Stated broadly the act of taking possession of immovable property generally implies an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the State. This question has been considered on several occasions and the general principle on which the contention is raised by the claimants has been upheld. In Swift and Co. v. Board of Trade, (1925) A C 520 at p.532, it has been held by the House of Lords that "on a contract for the sale and purchase of land it is the practice of the Court of Chancery to require the purchaser to pay interest on his purchase money from the date when he took, or might safely have taken, possession of the land."
This principle has been recognized ever since the decision in Birch v. Joy, (1852) 3 H L C 565. In his speech, Viscount Cave, L. C., added that 11 "this practice rests upon the view that the act of taking possession is an implied agreement to pay interest", and he points out that the said rule has been extended to cases of compulsory purchase under the Lands Clauses Consolidation Act, 1845. In this connection distinction is drawn between acquisition or sales of land and requisition of goods by the State. In regard to cases falling under the latter category this rule would not apply.
18. In Inglewood Pulp and Paper Co. Ltd. And New Brunswick Electric Power Commission, 1928 A C 492: (A.I.R. 1928 P.C. 287) it was held by the Privy Council that "upon the expropriation of land under statutory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon the principal sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention."
Dealing with the agreement that the expropriation with which the Privy Council was concerned was not effected for private gain, but for the good of the public at large, it observed.
"but for all that, the owner is deprived of his property in this case as much as in the other, and the rule has long been accepted in the interpretation of statutes that they are not to be held to deprive individuals of property without compensation unless the intention to do so is made quite clear. The right to receive the interest takes the place of the right to retain possession and is within the rule."
It would thus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property losses possession of it he is entitled to claim interest in place of right to retain possession. The question which we have to consider is whether the application of this rule intended to be excluded by the 12 Act of 1948, and as we have already observed, the mere fact that S. 5(3) of the Act makes S. 23(1) of the Land Acquisition Act of 1894 applicable we cannot reasonably infer that the Act intends to exclude the application of this general rule in the matter of the payment of interest. That in the view which the Punjab High Court has taken in Surjan Singh v. East Punjab Government, AIR 1957 Punj 265, and we think rightly."
16) The three Judges Bench of Hon'ble Apex Court in R.L. Jain (Dead) by LRs. vs DDA and others, (2004) 4 SCC 79, in paras 2, 3, 6 and 18 of said judgment has held as under:
"2. The relevant facts may be noticed in brief. The Chief Commissioner, Delhi, on behalf of the Delhi Administration, issued a preliminary notification under Section 4(1) of the Land Acquisition Act (hereinafter referred to as "the Act") on 13.11.1959 for acquisition of a large area of 34,070 acres of land including 1 bigha 11 biswa area in khasra no.223 of village Kharera for the planned development of Delhi. This was followed by a declaration under Section 6 of the Act, which was published in the Gazette on 11.10.1961. The dispute in the present appeal relates to aforesaid plot bearing khasra no.223. Being an evacuee property, the said plot was notified for being sold in public auction by the Ministry of Rehabilitation and it appears that in the auction notice it was mentioned that the same shall be out of the purview of the notification issued on 13.11.1959 under Section 4(1) of the Act for acquisition of the land. The original appellant R.L. Jain purchased the said plot in the auction held on 8.4.1960 and a sale certificate was issued 13 in his favour on 31.8.1961. In pursuance of the notifications issued under Sections 4(1) and 6 of the Act, the possession of plot no.223 was taken over by the Collector on 10.11.1961 and was handed over to the Delhi Development Authority (for short "the DDA"). The plot was included in Award No.1245 made by the Collector on 30.12.1961 and compensation amount was determined. R.L. Jain received the compensation amount under protest and sought reference to the Court since he was dissatisfied with the amount of the compensation offered and paid to him. The Collector thereafter made a reference to the Court under Section 18 of the Act.
3. After considerable period of time, R.L. Jain filed Suit No.154 of 1965 impleading Union of India as the sole defendant seeking a declaration that the proceedings taken for acquisition of plot bearing no.223 of village Kharera, which had been purchased by him in public auction, were illegal as it was stipulated in the auction notice that the said plot was not included in the preliminary notification issued under Section 4(1) of the Act which was published on 13.11.1959. After contest, the Sub-Judge First Class, Delhi passed a decree on 12.4.1967 that the acquisition proceedings including notification dated 11.10.1961 issued under Section 6 of the Act with regard to the plot in dispute are null and void. The Union of India preferred an appeal being RCA No.59 of 1968 but the same was dismissed by Senior Subordinate Judge, Delhi (with enhanced appellate powers) on 13.1.1969 and the judgment and decree dated 12.4.1967 of the Subordinate Judge was affirmed. The matter rested there as it was not carried in second appeal before the High Court.14
6. Shree Vijay Cotton & Oil Mills Ltd. v. State of Gujarat, 1991 (1) SCC 262, has been decided by a Bench of two Judges. In this case the possession of the land was taken over by the Government on 19.11.1949 under an arrangement that suitable land of equal value will be given to the owner. But, the government did not give any other alternative land and acquisition proceedings were initiated whereunder the notification under Section 6(1) of the Act was issued on 1.2.1955. The claimant was not satisfied with the award made by the Collector and accordingly asked for a reference under Section 18 of the Act. The District Judge determined the amount of compensation for the acquired land but did not award any interest. The owner of the land did not prefer any appeal against the award of the District Judge before the High Court, but the State preferred an appeal challenging enhancement in compensation. The claimant, then filed time barred cross objection under Order 41 Rule 22 CPC along with an application for condonation of delay. The application for condonation of delay was dismissed with the result, the cross objection stood rejected as time barred. It was contended on behalf of the claimant (owner of the land) that he was entitled to interest with effect from 19.11.1949. The High Court took the view that as the District Judge had not awarded interest for the period claimed by the claimant and his cross objection having been rejected as time barred, the claimant had no right to claim interest in the appeal preferred by the State Government. The claimant then preferred an appeal in this Court which modified the decree of the High Court by awarding interest. Paras 16 and 17 of the Report wherein the matter was dealt with, read as under:15
"16. ....The interest to be paid under Section 34 and also under Section 28 is of different character than the compensation amount under Section 23(1) of the Act. Whereas the interest, if payable under the Act, can be claimed at any stage of the proceedings under the Act, the amount of compensation under Section 23(1) which is an award-decree under Section 26 is subject to the rules of Procedure and Limitation. The rules of procedure are handmaiden of justice. The procedural hassle cannot come in the way of substantive rights of citizens under the Act.
17. We do not, therefore, agree with the reasoning and the findings reached by the High Court. We are of the opinion that it was not necessary for the appellant-claimant to have filed separate appeal/cross objections before the High Court for the purposes of claiming interest under Section 28 or Section 34 of the Act. He could claim the interest in the State appeal. The fact that he filed cross-objections which were dismissed as time barred, is wholly irrelevant."
18. In a case where the landlord is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the landowner. It is fully open for the landowner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for used and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provision of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded."
1617) In Executive Engineer, Nandur vs Vilas Eknath Jadhav and others, (2013) 4 SCC 268, Hon'ble Supreme Court has held in para 1 as under: Relevant extract of said judgment is reproduced here-in-below:
"20. ...Mr. Babu Marlapalle learned Senior Counsel appearing for the appellant submits that the judgment of the High Court is contrary to the law laid down by this Court in R.L. Jain vs DDA, (2004) 4 SCC
79. He submits that the appellant had taken possession of the land of respondents 1 to 4 on 03.06.2001, whereas the Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 30.12.2006. Undoubtedly, the aforesaid respondents would have been entitled to interest on the statutory benefits under the Act calculated from the date when the notification under Section 4 of the Act was issued. However, for the period between 03.06.2001 and 30.12.2006, they would only be entitled to rental compensation. On the rental compensation determined by the Land Acquisition Officer, the respondents would also be entitled to the interest at bank rate. In support of this, he relies on observations made in para 18 of the judgment in R.L. Jain's case (supra). In the aforesaid paragraph, this Court has observed as follows:
"18. In a case where the landlord is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the landowner. It is fully open for the landowner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary 17 notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provision of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded."
The aforesaid observation makes it abundantly clear that in case the landowner has been dispossessed prior to the issuance of the preliminary notification under Section 4(1) of the Act, it will be open to such landowner to recover the possession of his land by taking appropriate legal proceeding. In case the possession is not recovered, he would be entitled to rent or damages for use and occupation for the period government retained possession of the property."
18) Hon'ble Apex Court in the case of Madishetti Bala Ramul (Dead) by L.Rs. vs Land Acquisition Officer, (2007) 9 SCC 650, by relying upon the law laid down in case of R.L. Jain (supra) has awarded rent / damages for a period of 12 years in the form of interest @ 15% per annum from the date of taking of possession till issue of valid subsequent notification under Section 4 of the Act on the amount of compensation awarded in terms of subsequent notification by concluding in para 20 hereunder:
"In the peculiar facts and circumstances of the case, although the proper course for us would have to remand the matter back to the Collector to determine the amount of compensation to which the appellants would be entitled for being remained out of possession since 18 1979, we are of the opinion that the interest of justice would be met if this appeal is disposed of with a direction that additional interest at the rate of 15% per annum on the amount awarded in terms of award dated 02.01.1999 for the period 16.03.1979 till 22.12.1991, should be granted, which, in our opinion, would meet the ends of justice."
19) Hon'ble Apex Court in the case of Tahera Khotoon and others vs Revenue Divisional Officer / Land Acquisition Officer and others, (2014) 13 SCC 613 in paras no. 9, 10, 11, 12, 13, 14 and 15 of said judgment, held thus:
"9. Now what remains to be considered and decided by us is whether the appellants are entitled for rent or damages from the date they were dispossessed till the date of preliminary notification.
10. In support of the assertion, Shri Shetty, learned Senior Counsel for the appellants has brought to our notice the observations rendered by this Court in R.L. Jain vs DDA, (2004) 4 SCC 79 and also in Madishetti Bala Ramul vs Land Acquisition Officer, (2007) 9 SCC
650.
11. In the first case, this Court after considering the submission that is canvassed by the landloser(s) thought it fit to remand the matter to the LAO to determine the rent or damages for use of the property by the landowner(s) are entitled while determining the compensation amount payable to the landowner(s) for acquisition of the property.
12. In the latter decision, this Court instead of remanding the matter to the LAO, thought it fit to award 19 15% interest to the landloser(s) from the date they were dispossessed till the date of preliminary notification.
13. Keeping in view the peculiar facts and circumstances of the case, we are of the opinion that the exercise that has been done by this Court in Madishetti Bala's case (supra) requires to be adopted.
14. In the instant case, it is not in dispute nor can it be disputed by either side that the property in dispute was in possession of the Warangal Municipal Committee. In fact the said Municipal Committee had developed the aforesaid land into a park. Since there was a dispute among the owners of the land with the Municipal Committee, the Municipal Committee had sought the assistance of the State Government to acquire the property and to hand over the same to the Municipal Committee for its use and development.
15. It is also not in dispute that the Municipal Committee was in possession of the aforesaid property right from 1-1-1938 till the Notification was issued by the State Government on 10-1-1996. Keeping in view the observations made by this Court in Madishetti Bala Ramul (supra), we direct the State Government to pay rents/damages at the rate of 15% on the compensation awarded from the date the landowners were dispossessed, namely, from 1-1-1938 till the date of issuance of the preliminary Notification i.e. 10-1-1996. The calculations shall be made by the State Government as expeditiously as possible and disburse the aforesaid amount to the appellants as early as possible, at any rate, within three months from the date of receipt of this order."
20) In its judgment rendered by Hon'ble Apex court in Rakesh Kumar Jain and another vs State of U.P., 20 through Collector and another, (2007) 2 SCC 461, it has held in paras 3 and 5, as under:
"3. This appeal is directed against the final judgment and order dated 20.10.2005, passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition no. 15903 of 2002, whereby the High Court has dismissed the writ petition filed by the present appellants / landowners. The appellants were the owners of land of khasra nos. 111A and 112B, measuring 7-6 bighas, situated at Mauza Lakhanpur, Tehsil and District Agra. Respondent 2 without following the procedure for acquiring the land under the Land Acquisition Act took forcible possession of land in question on 31.08.2000. It is not in dispute that respondent no. 2 had not resorted to the provisions of the Land Acquisition Act. Being aggrieved by the arbitrary action of Respondent 2, the appellants filed original Civil Suit no. 358 of 2000 before the learned Civil Judge (Junior Division) Agra for injunction to restrain Respondent 2 from encroaching and trespassing or taking, in any manner, the possession of the land, by raising any construction of laying road on the land of the appellants. The trial court issued notice to Respondents 1 and 2. After the service of notice, the civil court passed an order of injunction for maintaining the status quo with respect to the land in question and the said order was extended from time to time. Since an interim order was passed, Respondent 2 gave an undertaking to pay compensation to the appellants from their land of khasra no. 111 at Mauza Lakhanpur, Tehsil & District Agra and that the said compensation shall be paid within a period of two months from the date of said undertaking i.e. 31.08.2000. This undertaking was filed 21 before the Vth Addl. Civil Judge (Junior Division), Agra in Suit no. 358 of 2000 which is marked as Annexure P-5 in the SLP paper book. The Vth Addl. Civil Judge, Junior Division, Agra, on the basis of the above undertaking passed an order on 02.09.2000 disposing of the injunction application on the basis of the undertaking given by Respondent 2 to pay compensation to the appellants. According to the second respondent, the amount of compensation comes to Rs.17,84,974.50 which they have calculated @ Rs. 225 per sq. meter. The said amount, admittedly, as per the undertaking, was not deposited within two months. However, a cheque for the amount of Rs. 17,84,974.50 dated 14.02.2002 drawn on Union Bank of India, Agra was issued to the appellants. However, the appellants refused to receive the same since the said amount was not tendered as per the undertaking. While tendering the cheque dated 14.02.2002, Respondent 2 called upon the appellants to convey their consent for withdrawal of Suit no. 358 of 2000 and also signifying their consent in writing that they will not prefer any other claim in this regard so that the payment made by the cheque can be given to them. Thereafter, the money was deposited with the Vth Addl. Civil Judge, Junior Division, Agra. The amount deposited is still lying in the said court.
5. We have carefully perused the annexures and the judgment rendered by the High Court and also heard the arguments advanced by learned counsel for the parties. In our opinion, the findings recorded by the High Court in regard to the claim of interest by the appellants is absolutely incorrect. Though the Agra Development Authority (Respondent 2) had agreed to deposit the money within two months, they had not done so.22
Admittedly, they had issued a cheque after one year and five months and when the cheque was refused to be received by the landowners, they deposited the same in the civil court which does not carry any interest. Admittedly, the landowners have been denied the beneficial use of the money. In our opinion, the appellants have been wrongly deprived of the beneficial use of their money. Therefore, they are entitled to interest. We, therefore, set aside the order passed by the High Court and award simple interest at the rate of 18% p.a. The possession of the land was taken on 31.08.2000. Therefore, the Agra Development Authority (Respondent
2) is liable to pay simple interest @ 18% on the sum of Rs.17,84,974.50 from 31.08.2000 till the date of actual payment. In the meanwhile, the appellants are at liberty to withdraw the sum of Rs.17,84,974.50 which is in deposit with the civil court without furnishing any security and on production of a copy of this order. The said court is directed to refund the said amount to the appellant on production of copy of order of this Court."
21) Before further discussion it is pertinent to mention here the provisions contained in Section 23 of the Land Acquisition Act, 1894. The same reads as under:
"23. Matters to be considered in determining compensation.- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-
First, the market value of the land at the date of the publication of the notification under section 4, sub-
section (1);
Secondly, the damage sustained by the person interested, by reason of the taking of 23 any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; Thirdly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of serving such land from his other land;
Fourthly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and Sixthly, the damage (if any) bona fide resulting form diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
[(IA) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such marked value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation.- In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.
24(2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of [thirty per centum] on such market-value, in consideration of the compulsory nature of the acquisition."
22) In the case in hand, the appellant / landowner was dispossessed on 11.01.2005 prior to the issuance of notification under Section 4(1) of the Land Acquisition Act. The appellant / landowner is, therefore, entitled to get rent or damages for use and occupation for the period the respondent Corporation retained unauthorized possession of the property.
23) The learned reference court instead of granting the damages had chosen to give interest in the shape of damages to the decree holder, on account of taking illegal possession over the land in question and decided to award interest on the amount of compensation in view of Section 23 of the Land Acquisition Act, 1894. But the learned reference court did not consider the calculation of interest on the amount of award for the purpose of damages / interest. Thus, it is held that the decree holder is entitled to receive the damages in the shape of 15% interest per annum on the amount awarded by the Special Land Acquisition Officer as compensation. Calculations be made, accordingly, in view of the findings recorded above while preparing the decree.
2524) For the reasons as discussed above, the answer to points of determination no. 1 is in affirmative, i.e, in favour of the appellant and against the respondent Corporation.
Answer to point of determination no. 2 (findings on issue no. iii):
25) As per the provisions contained in Sections 16, 17(3A), 31 and 28/34 of the Land Acquisition Act, compensation should be paid prior to taking of possession of land and for any delay interest should be paid.
Five Judges Bench of the Hon'ble Supreme Court in the case of Sunder vs Union of India, J.T. 2001 (8) SC 130, in respect of payment of statutory interest under Section 34, has held thus:
"14. Question of payment of interest would arise only when the compensation is not paid or deposited on or before the date of taking possession of the land. It is inequitable that the person who is deprived of the possession of the land, on account of acquisition proceedings is not given the amount which law demands to be paid to him; any delay thereafter would only be to his detriment. There must be a provision of buffet such iniquity. It is for the purpose of affording relief to the person who is entitled to such compensation when the payment of his money is delayed that the provision is made in Section 34 of the Act. That section is extracted below:
"34. Payment of interest. -When the amount of such compensation is not paid or deposited on or before taking possession of the land, the collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so 26 taking possession until it shall have been so paid or deposited.
Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry."
26) Also, in respect of statutory interest awarded in Part 2(a), 2(b), 2(c) and 2(d) of the operative portion of the award, learned Reference Court has erroneously appropriated the amount paid by the respondent Corporation towards amount of compensation which is against the principle of law laid down by Hon'ble Apex Court in Gurpreet Singh vs Union of India, (2006) 8 SCC
457. Paras 52 and 53 of said judgment are important and the same are being reproduced hereunder:
"52. What is to happen when a part of the amount awarded by the reference Court or by the appellate court is deposited pursuant to an interim order of the appellate court or of the further appellate court and the awardee is given the liberty to withdraw the amount? In such a case, the amount would be received by the decree-holder on the strength of the interim order and the appropriation will be subject to the decision in the appeal or the further appeal and the direction, if any, contained therein. In such a case, if the appeal is disposed of in his favour, the decree-holder would be entitled to appropriate the amount already received by him pursuant to the interim order first towards interest then towards costs and the balance towards principal as on date of the withdrawal of the amount and claim interest on the balance amount of enhanced compensation by levying execution. But on the 27 part appropriated towards the principal, the interest would cease from the date on which the amount is received by the awardee. Of course, if while passing the interim order, the court has indicated as to how the deposited amount is to be appropriated, that direction will prevail and the appropriation could only be done on the basis of that direction.
53. Thus, on the whole, we are satisfied that the essential ratio of Prem Nath Kapur vs National Fertilizers Corporation of India Ltd., (1996) 2 SCC 71, on appropriation being at different stages is justified though if at a particular stage there is a shortfall, the awardee-decree-holder would be entitled to appropriate the same on the general principle of appropriation, first towards interest, then towards costs and then towards the principal, unless, of course, the deposit is indicated to be towards specified heads by the judgment-debtor while making the deposit intimating the decree-holder of his intention. We, thus, approve the ratio of Prem Nath Kapur (supra) on the aspect of appropriation."
27) In the case in hand, amount of Rs.30,00,000/- paid on 24.10.2008 and Rs.1,79,82,040/- paid on 10.06.2010 were paid pursuant to interim orders passed by this Court. The learned court below has erroneously not appropriated the above said payments towards interest accrued till 24.10.2008 and 10.06.2010. However, in view of the ratio laid down by the Hon'ble Apex Court in Gurpreet Singh's case (supra), the findings recorded by the reference court adjusting the amount on principal instead of first adjusting the same towards interest are illegal and set aside.
2828) On one hand, the decree holder is claiming interest at the rate of 15% on the award made by the S.L.A.O., in view of Section 24 of the Land Acquisition Act; on the other hand, the appeal has been preferred by the respondent Corporation stating that the reference court has erred in law by awarding double interest. From the perusal of the impugned judgment and decree passed by the reference court, it would reveal that the reference court has not awarded double interest on the amount of compensation, rather it has calculated the interest at the rate of 7% per annum on the total amount of interest, which is contrary to the provisions contained in Section 23 of the Land Acquisition Act, as the same stipulates that if the amount of compensation is not paid within a year, then the decree holder is entitled to the interest at the rate of 15% per annum. Thus, this Court is of the view that the learned reference court has erred in law in awarding the interest at the rate of 7% per annum. However, in view of Section 23 of the Land Acquisition Act, the appellant / decree holder is entitled to interest at the rate of 15% per annum. Secondly, the reference court has considered the amount deposited / paid by the respondent Corporation towards principal amount, whereas in view of the judgments referred above, the amount deposited by the respondent Corporation first of all is to be deducted for interest and the remaining amount shall also incur interest till the date of actual payment of entire principal amount along with interest.
29) The finding arrived at by the reference court, vide award dated 16.07.2013, in regard to the compensation 29 granted at the rate of 7% per annum on the total amount of interest from 30.12.2010 till the date of payment is erroneous and is liable to be set aside. The same are set aside. The chart of calculation be prepared, accordingly, while preparing the decree. It is held that the appellant / landowner shall be entitled to 15% interest per annum on the said entire amount and the deposits made by the respondent Corporation shall first of all be adjusted towards interest and remaining towards principal. The award passed by the reference court is thus modified to the above extent.
30) In view of the above, the point of determination no. 2 is also answered in favour of the appellant and against the respondent Corporation.
Answer to point of determination no. 3:
31) Admittedly, the appellant (landowner) / decree holder was the bhumidhar with transferable rights of the land in question. It is also not in dispute that respondent Corporation was in illegal possession of the land in question. Despite this, respondent Corporation unnecessarily contested the civil suit and filed various writ petitions and civil misc. applications / modification applications before this Court. The respondent Corporation also unnecessarily pursued the vexatious litigation even on trivial issues for five years. This was done irrespective of the fact that it could not succeed in its case right from trial court upto the Hon'ble Supreme Court. Due to this, the appellant had to spend huge amount of money and precious 30 time in defending his case. He also suffered unbearable mental agony.
32) The object of imposing costs is that it should act as deterrent to vexatious litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defences. Costs also ensure that the provisions of Code of Civil Procedure and other laws governing the field are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court. Further, costs also provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. It is proved on record that respondent Corporation has abused the legal process in the present case. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court.
33) The costs of the litigation is defined under Section 35 of the Code of Civil Procedure, 1908. The same reads as under:
35. Costs-- (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.31
(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.
35A. Compensatory costs in respect of false or vexatious claims or defenses-- (1) If any suit or other proceedings including an execution proceedings but excluding an appeal or a revision, any party objects to the claim of defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court if it so thinks fit, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the object or by the party by whom such claim or defence has been put forward, of cost by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding three thousand rupees] or exceeding the limits of it pecuniary jurisdiction, whichever amount is less:
Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under a corresponding law in force in any part of India to which the said Act does not extend and not being a Court constituted under such Act or law, are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees :
Provided, further, that the High Court may limit the amount or class of Courts is empowered to award as costs under this Section.
(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.
(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.
[35B. Costs for causing delay-- (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit--
(a) fails to take the step which he was
required by or under this Code to take on
that date, or
32
(b) obtains an adjournment for taking such
step or for producing evidence or on any
other ground,
the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of--
(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs.
(b) the defence by the defendant, where the defendant was ordered to pay such costs.
Explanation.--Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.
(2) The costs, ordered to be paid under sub-section (1) shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.]"
34) In view of the above, the appeal of the appellant / decree holder deserves to be allowed with costs.
Since the Power Grid Corporation of India Ltd. (respondent Corporation) has dragged the appellant / decree holder in vexatious litigation, therefore, the appellant / decree holder is entitled for compensatory costs in respect of false and vexatious litigation under Section 35A of the Code of Civil Procedure, 1908. Therefore, in the peculiar facts and circumstances of the case, the appeal of the appellant / decree holder is allowed with costs. The appeal of the respondent Corporation is dismissed with costs, under the circumstances enumerated above. The appellant / decree holder is entitled to compensatory costs as envisaged under 33 Section 35A of the Code of Civil Procedure, 1908. The same is quantified at Rs.2,50,000/- for the entire litigation, i.e., civil suit, civil appeal, writ petition, special appeal and Special Leave to Appeal petition. The decree shall be prepared accordingly.
35) The point of determination no. 3 is also answered in favour of the appellant / decree holder and against the respondent Corporation.
36) In result, First Appeal no. 109 of 2013 is allowed. The judgment and decree dated 16.07.2013, is modified to the extent that the appellant / decree holder is entitled to receive the damages in the shape of interest at the rate of 15% per annum on the amount awarded by the Special Land Acquisition Officer. Calculations be made, accordingly, in view of the findings recorded above, while preparing the decree. So far as the impugned award dated 16.07.2013 to the extent compensation granted at the rate of 7% per annum on the total amount of interest from 30.12.2010 till the date of payment is concerned, it is held that the appellant / landowner shall be entitled to interest at the rate of 15% per annum on the said entire amount and the deposits made by the respondent Corporation shall first of all be adjusted towards interest and remaining towards principal. So far as the costs part is concerned, the appellant / decree holder is entitled to compensatory costs as envisaged under Section 35A of the Code of Civil Procedure, 1908. The same is quantified at Rs. 2,50,000/- for the entire litigation, i.e., right from trial court upto the 34 Hon'ble Supreme Court. Office shall prepare the decree, accordingly.
37) First Appeal no. 113 of 2013 is dismissed along with cost of Rs. 1,00,000/-.
38) Before parting with the judgment, this Court deems it proper to dispose of the misc. application no. 603 of 2018, filed by the applicant-appellant Gurbachan Singh seeking appropriate legal / disciplinary action against Mr. A.S. Rawat, Senior Advocate.
39) Misc. Application no. 603 of 2018 has been filed by the applicant-appellant Gurbachan Singh with the averments that Mr. A.S. Rawat, Senior Counsel appearing on behalf of Power Grid Corporation of India Limited was engaged by him in earlier round of litigation in Writ Petition no. 1871 (M/S) of 2009, Gurbachan Singh vs Power Grid Corporation of India Ltd. and another (as referred in para 1 of the body of the judgment) and has prayed that Senior Counsel had all the knowledge of the case of the petitioner (applicant herein) and he has committed professional misconduct and his working is unethical in a way that he is now contesting the case against the applicant-appellant. On 11.01.2018, this Court passed an order, whereby opportunity was given to learned Senior Counsel to file his objections against the averments made by the applicant in the misc. application. The order dated 11.01.2018, is reproduced here-in-below:
"Mr. Gurbachan Singh, petitioner in person. Mr. P.S. Bisht, Standing Counsel for the State.35
Mr. A.S. Rawat, Senior Advocate assisted by Dr. Kartikey Hari Gupta, Advocate for the respondent.
Heard Mr. Gurbachan Singh, petitioner in person and Mr. A.S. Rawat, Senior Advocate assisted by Dr. Kartikey Hari Gupta, Advocate for the respondent.
Miscellaneous application no. 603 of 2018 has been filed by the appellant Gurbachan Singh with the averment that Mr. A.S. Rawat, Senior Counsel appearing on behalf of Power Grid Corporation of India Ltd. was his counsel in Writ Petition No. 1871 of 2009 (M/S) which reflects from the order dated 07.12.2009 passed by this Court annexed with the application, therefore, he prayed that appropriate legal / disciplinary action be taken against Mr. A.S. Rawat, Senior Counsel.
The said application is supported by an affidaviat of Mr. Gurbachan Singh.
Mr. A.S. Rawat, Senior Counsel submits that in Writ Petition no. 1871 of 2009 (M/S) Mr. Sudhir Chaudhary was the Advocate on record, engaged by Mr. Gurbachan Singh and he was the arguing counsel in that case only. He further submitted that being a Senior Advocate, he appeared in that case. Similarly, in this appeal on behalf of Power Grid Corporation of India Pvt. Ltd. Dr. Kartikey Hari Gupta is an Advocate on record and he is the arguing counsel, engaged by him.
Simultaneously, in connected FA No. 113 of 2013, Power Grid Corporation of India Ltd. vs Gurbachan Singh and others, Dr. Kartikey Hari Gupta is an Advocate on record and Mr. A.S. Rawat, Senior Advocate is only arguing counsel.
On filing of the present application, Mr. A.S. Rawat Senior Advocate is afforded an opportunity of filing objection, if any, he wish to file. Mr. A.S. Rawat, Senior Advocate submits that since, in earlier writ petition he was not the Advocate on record for Mr. Gurbachan Singh and he has appeared as arguing counsel, engaged by Mr. Sudhir Chaudhary, therefore, he need not to file any objection.
Copy of the application and affidavit filed in support thereof has already been supplied to Dr. Kartikey Hari Gupta, Advocate for perusal of Mr. A.S. Rawat, Senior Advocate.
Despite the opportunity granted, Mr. A.S. Rawat, Senior Advocate is not willing to file any objection, thus opportunity to file the objection against the aforesaid application is closed.
This appeal is listed for dictation of judgment as arguments has been concluded.
List on 14th February 2018 along with connected matter for dictation and for orders on the application along with the record of WPMS no. 1871 of 2009."36
40) The applicant-appellant Gurbachan Singh has filed supplementary affidavit along with the certified copy of the Vakalatnama filed by Mr. A.S. Rawat, Advocate and Mr. Sudhir Chaudhary, Advocate, on behalf of petitioner Gurbachan Singh in Writ Petition no. 1871 of 2009 (M/S). From a perusal of the Vakalatnama, it would reveal that at that point of time Mr. A.S. Rawat was not designated Senior Counsel. Despite the opportunity granted by the Court, Mr. A.S. Rawat, Sr. Counsel has not withdrawn himself from the case and argued the matter on behalf of Power Grid Corporation of India against his previous client in the same subject matter. The conduct of Mr. A.S. Rawat, Senior Advocate is against the professional ethics and appears to be misconduct on his part. However, as far as misconduct is concerned, the applicant-appellant Gurbachan Singh can avail the remedy available to him under the Advocates Act, 1961, to make complainant against A.S. Rawat, Senior Counsel if he wishes so. But, as far as designation of Mr. A.S. Rawat is concerned, he was designated as 'Senior Advocate' by the High Court of Uttarakhand. An Advocate is always known for his integrity, character, moral and high standards of ethics.
41) Hon'ble Apex Court in D.P. Chadha vs Triyugi Narain Mishra and others, (2001) 2 SCC 221, has held that betraying the confidence of a client is a grave misconduct, however, a deliberate attempt to deceive or practice fraud on the court is the gravest misconduct, because of the prime position that advocates occupy in the administration of 37 justice itself. Paras 22, 23 and 24 of aforesaid judgment are important. The same are being reproduced as under:
22. A mere error of judgment or expression of a reasonable opinion or taking a stand on a doubtful or debatable issue of law is not a misconduct; the term takes it colour from the underlying intention. But at the same time misconduct is not necessarily something involving moral turpitude. It is a relative term to be construed by reference to the subject-matter and the context wherein the term is called upon to be employed. A lawyer in opponent, a duty to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand, more so, when there are conflicting claims. While discharging duty to the court, a lawyer should never knowingly be party to any deception, design or fraud. While placing the law before the court a lawyer is at liberty is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to persuade an exposition which would serve the interest of his client so long as the issue is capable of that resolution by adopting a process of reasoning. However, a point of law well settled or admitting of no controversy must not be dragged into doubt solely with a view to confuse or mislead the Judge and thereby gaining an undue advantage to the client to which he may not be entitled. Such conduct of an advocate becomes worse when a view of the law convassed by him is not only unsupportable in law but if accepted would damage the interest of the client and confer an illegitimate advantage on the opponent. In such a situation the wrong of the intention and impropriety of the conduct is more that apparent. Professional misconduct is grave when it consists of betraying the confidence of a client and is gravest when it is a deliberate attempt at misleading the court or an attempt at practicing deception or fraud on the court. The client places his faith and fortune in the hands of the counsel for the purpose of that case; the court places confidence in the counsel in case after case and day after day. A client dissatisfied with his counsel may change him but the same is not with the court. And so the bondage of trust between the court and the counsel admits of no breaking.
23. In George Frier Grahame v. Attorney-General, Fiji the Privy Council has approved the following 38 definition of "professional misconduct" given by Darling J.in A Solicitor ex the Law Society, Re:
"If it is shown that a solicitor in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonorable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct."
24. It has been a saying as old as the profession itself that the court and counsel are two wheels of the chariot of justice. In the adversarial system, it will be more appropriate to say that while the Judge holds that reigns, the two opponent counsel are the wheels of the chariot. While the direction of the movement is controlled by the Judge holding the reigns, the movement itself is facilitated by the wheels without which the chariot of justice may not move and may even collapse. Mutual confidence in the discharge of duties and cordial relations between Bench and Bar smoothen the movement of the chariot. As responsible officers of the court, as they are called - and rightly, counsel have an overall obligation of assisting the courts in a just and proper manner in the just and proper administration of justice. Zeal and enthusiasm are the traits of success in profession but overzealousness and misguided enthusiasm have no place in the personality of a professional.
42) Firstly, Mr. A.S. Rawat, Senior Advocate has made a false statement before this Court that he was not engaged as a counsel by the applicant-appellant. Secondly, it is submitted that he argued the case on behalf of the petitioner (applicant-appellant herein) as a Senior Counsel and being a Senior Counsel he can argue the case even against his previous client. This conduct is not accepted from a common prudent person, much less a Senior Advocate. A lawyer is known for his extra ordinary knowledge / intelligence. A bonafide mistake is excusable, but a mistake committed deliberately is inexcusable. From the material available on record, as also from the statement of Mr. A.S. Rawat, Senior Advocate it would reveal that it 39 was not a bonafide mistake committed by Mr. A.S. Rawat, Senior Advocate, rather it was a deliberate act.
43) As far as a Senior Advocate is concerned, he is always considered on a highest pedestal and it is expected from a Senior Advocate to act ethically in accordance with the provisions contained in the Advocates Act. But, Mr. A.S. Rawat, Senior Advocate failed to maintain the dignity, moral and high ethics of a Senior Advocate and acted in unethical manner.
44) High Court of Uttarakhand has framed the Uttarakhand High Court Designation of Senior Advocates Rules, 2009, in exercise of powers vested in the High Court of Uttarakhand under Section 16(2) of the Advocates Act, 1961, and in supercession of all previous Rules, Notifications, or Orders on the subject. Rule 8 of aforesaid Rules reads as under:
"8. Review: (i) If after being designated as a Senior Advocate, it is reported by a Judge of the Court or is otherwise brought to the notice of the Court that by virtue of his conduct and behaviour, either inside or outside the Court, he has forfeited this privilege / distinction conferred upon him by the Court, the matter may be placed before the Chief Justice for being, in turn, placed before the Full Court for consideration of withdrawal/cancellation of the designation as a Senior Advocate.
(ii) The Full Court shall accord its serious consideration, either based upon a report after an enquiry to be conducted in this behalf, or upon recording its own satisfaction, as to whether the privilege of designation 40 may be withdrawn or not. Endeavour shall be made to arrive at a decision by consensus and if this is not possible by majority votes of the Judges constituting the Full Court. If the Full Court decides to withdraw/cancel the designation, a Notification to this effect shall be issued by the Registrar General and published in the same manner as in Rule 4."
45) In view of the above, it is evidently clear that after being designated as Senior Advocate, Mr. Avtar Singh Rawat by virtue of his conduct and behaviour inside the court room, forfeited this privilege/distinction conferred upon him by the Court. In the opinion of this Court, he does not deserve to continue as a Senior Advocate. Therefore, the matter be placed before Hon'ble the Chief Justice for being, in turn, placed before the Full Court for consideration of withdrawal/cancellation of the designation of Mr. Avtar Singh Rawat as a Senior Advocate.
46) The Registrar General of this Court is directed to place the observations made by this Court in its judgment before Hon'ble the Chief Justice for being, in turn, to be placed before the Full Court for withdrawal/cancellation of the designation as a Senior Advocate conferred upon Mr. A.S. Rawat.
(Lok Pal Singh, J.) Dt. February 14, 2018.
Negi 41 42 43 44 45